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February 25, 2019 Practice Points

Experiences in Addressing Public Health Ramifications of Septic System Failures

Lessons from the chief legal counsel of the Florida Department of Health

by Ralph Schofield

City dwellers often understand septic systems to be viable as rural wastewater treatment only where municipal sewer access is economically unfeasible. But while sewer extension is among “the prime determinants of high density development,” it has not kept ideal pace with growing populations in high-density areas. I live with septic in an area denser than Memphis and my state’s capital. As a homeowner, I fear the expense if something goes wrong with that system. As a public health lawyer, I fear the expense to the environment and the public in the event of a failure.

In addition to ruining your lawn, septic systems that malfunction or fall into disrepair can put raw sewage on the ground, with contaminants ready for your children or pets to traverse. That sewage can seep into groundwater and nearby waterways, causing problems with drinking water, seafood, and swimming. Sea level rise from climate change threatens septic systems, which rely on high water level calculated before the growing threat of climate change to function properly.

Mobile home parks often rely on septic systems and, as high-density areas, present a unique challenge to public health concerns. It may come as a surprise to those who have read about how “[t]railer parks are big and profitable business,” but in my environmental health enforcement practice for county health departments, mobile home park landlords often complain of being destitute, unable to pay utility bills, and just awaiting foreclosure to take the park burden off their hands. Whether these landlords are being honest or simply apathetic about their tenants, the result is the same: the park falls into disrepair, safety hazards like tetanus-covered scrap metal and entombing refrigerators collect, old tires serve as breeding grounds for mosquitoes and other disease vectors, and septic systems, which are sometimes jury-rigged out of things like buried trash cans, eventually fail.

Enforcement options for failing septic systems are not always appealing. If the landlord is destitute and in debt, another fine will fall on deaf ears. Foreclosure and sale to a new owner is an option, but already poor tenants may become homeless if a new owner raises rents or razes the park entirely. An injunction to turn off water to stop raw sewage flow may harm the tenant more than the slumlord. A judgment revoking the park’s operating permit puts the judge in the tough situation of considering throwing someone with a financial sob story in jail for a few days over failing to complete an expensive repair.

These approaches, separately and in combination, require careful examination and consideration to determine the most effective steps. Superficially, “most effective” means a clean property and safe, healthy living for the occupants and the public. But effectiveness with judges, tenants, and the public is key. When I ask for water to be shut off, a landlord to be forced into cleanup or repair or contempt and jailtime for failure to act, the burden is high. While turning off water to tenants seems extreme compared to ordering the landlord to repair, Florida law treats mandatory injunctions, such as a forced repair, as “harsh” and “drastic” in comparison to negative injunctions, such as an order not to use water.

The best courtroom approach is honesty about competing issues of legal burden, effects on tenants, and public health urgency, coupled with compelling and meticulous evidence, inclusive of detailed inspections kept in regular business records so they can come in as their own evidence without the need for duplicative substantive testimony, great photos, and documented efforts to work with the park owner toward an amicable solution and with the tenants to connect them to community resources if your efforts go south and result in water being shut off or tenants actually or constructively evicted.

While I expect few readers will be in my position as public health enforcer, the lessons from my experiences may be useful for landlord-tenant lawyers, mediators, or judges in considering the dynamics at play in low-income housing and mobile home parks. Those who enforce public health laws or leases should be cognizant of the facts that (1) financial burden alone is often little leverage against the destitute, (2) taking a mediator’s approach to the situation by examining it closely to understand the values and other drivers for the parties involved is the ideal and most efficient method for achieving compliance and moving forward healthily and safely, and (3) care should be taken to avoid the image that you are simply putting poor tenants out on the street.

As a final note, it is always best if you can recruit others to help you achieve your goals. For my practice, opening the door for localities to enforce their ordinances and police power or for tenants to seek judicial relief based on lease violations can often bring about a quicker and more effective resolution. Always consider all options.

Ralph Schofield is chief legal counsel with the Florida Department of Health with an office in Pensacola  He is a former cochair of the Landlord-Tenant Subcommittee of the Section of Litigation's Real Estate, Condemnation & Trust Committee.

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